Case: 11-10417 Document: 00511761464 Page: 1 Date Filed: 02/17/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 17, 2012
No. 11-10417
Conference Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BRIAN KEITH WARREN,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:10-CR-253-1
Before HIGGINBOTHAM, GARZA, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Appealing the judgment in a criminal case, Brian Keith Warren contends
that the district court erred by relying on U.S.S.G. § 2G2.2 at sentencing because
that provision was not the result of the Sentencing Commission’s application of
its own expertise and because it is not supported by empirical evidence. He
concedes that this argument has been rejected as to other guideline sentencing
provisions. See United States v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009). His
argument is foreclosed by United States v. Miller, 665 F.3d 114, ___, 2011 WL
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-10417 Document: 00511761464 Page: 2 Date Filed: 02/17/2012
No. 11-10417
6160220, **3-7 (5th Cir. 2011). Accordingly, the Government’s motion for
summary affirmance is GRANTED, its alternative motion for an extension of
time to file a brief is DENIED, and the judgment of the district court is
AFFIRMED.
2